Stephen Oyoo Mambo v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT HOMA BAY CRIMINAL APPEAL NO.15 OF 2017 BETWEEN STEPHEN OYOO MAMBO ................................................ APPELLANT AND REPUBLIC ......................................................................... RESPONDENT (From original conviction and sentence in Criminal Case No.81of 2015 of the SRM’s court at Mbita) JUDGMENT 1. STEPHEN OYOO MAMBO (the appellant) was convicted on a charge of defilement of a girl contrary to Section 8 (2) of the Sexual Offences Act No.3 of 2006 whose particulars stated that on 1 st February 2015 IN MBITA, he intentionally and unlawfully caused his penis to penetrate the genital organs namely vagina of LAA a child aged 7 years. 2. The appellant admitted the charge and was sentenced to serve life imprisonment. 3. The facts as narrated to the trial court were that on 01/02/2015 LAA (while her mother was away) was playing, when the appellant lured her into his house and defiled her. He then gave her Kshs.10/= (ten) and warned her not to tell her mother about the incident – so she did not. 4. The next day she went to school then returned home for lunch but could not go back to school. She went to her mother’s cafeteria where she lay down on the floor in pain – which is where her mother found her. Her mother realized LAA had difficulty walking and implored the child to tell what was wrong – that is when LAA narrated how the appellant had defiled her. She was taken to hospital and an examination result as contained in the P3 form showed that her hymen was broken, there was laceration on the perineum and labia majora. Both the treatment notes from Mbita District Hospital (where she was treated) and the P3 form were produced as exhibit. 5. The appellant’s response to these facts was recorded thus:- “The facts are correct.” 6. The appellant argued his appeal by way of written submissions saying the facts were read to him in a language that he did not understand thereby prompting him to admit everything. 7. He also claims to have been on drugs which affected his faculties at the time of plea and prays to be given a chance to prove his innocence. 8. In opposing the appeal Mr. Oluoch submitted that the charge and facts were read to the appellant on Dholuo and there was no error on the record. Further that the life sentence meted was in accordance with the legal provisions of the Act and urged the court to dismiss the appeal as having no merit. 9. I have perused the record and confirm the court where plea was taken initially on 09/02/2015 had recorded the language in use and the charge is shown as being read out to the appellant in Dholuo. When the matter came up for hearing in a different court on 28/10/2015 and the appellant requested that the charge be read to him afresh – the trial magistrate did record that the same was read in Dholuo. 10. The file was then placed aside until noon when the facts were narrated – unfortunately when the court reconvened, the quorum record does not show what language was used when the facts were narrated. Of course it is most likely that the facts were interpreted to the appellant in Dholuo – that would be the logical sequence given that at each turn the charge was read over and explained to him in Dholuo.

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